The majority would accord weight, of varying and indeterminate amount, to the existence of such a conflict in every case where it is present. The majority’s approach would allow the bare existence of a conflict to enhance the significance of other factors already considered by reviewing courts, even if the conflict is not shown to have played any role in the denial of benefits. The end result is to increase the level of scrutiny in every case in which there is a conflict — that is, in many if not most ERISA cases — thereby undermining the deference owed to plan administrators when the plan vests discretion in them.
I would instead consider the conflict of interest on review only where there is evidence that the benefits denial was motivated or affected by the administrator’s conflict.
Chief Justice Roberts, concurring in part, concurring in the judgment, Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (U.S. 2008) (internal citations omitted) (emphasis added)
In Champion v. Black & Decker (U.S.) Inc., 550 F.3d 353 (4th Cir. 2008), the Fourth Circuit Court of Appeals recently reinterpreted its views on how a conflict of interest should affect judicial review of a plan fiduciary’s benefits denial. The Court properly abandoned its sliding scale metaphor and broadened its views on when a conflict exists.
On the other hand, the Court ultimately applied what appears to be an intent test in evaluating the effect of the conflict on the benefits decision. This approach is that argued for by Chief Justice Roberts and Justice Scalia in their concurring and dissenting opinions, respectively, in Glenn. As such, it is flawed in view of the broader approach taken by the majority in that case.
Nonetheless, the Scalia-Roberts approach is apparently the law in the Fourth Circuit